Tbe following opinion was filed June 21, 1917:
Eschweiber, J.(dissenting). I shall content myself with merely stating tbe conclusions arrived at from a consideration of tbe statutes involved.
1. That nothing is subject to an inheritance tax that is not so in being or existence at the time of tbe creation of tbe fund, in tbis case by tbe death of tbe testator, that it may then be considered as corpus. State v. Pabst, 139 Wis. 561, 121 N. W. 351; Estate of Bullen, 143 Wis. 512, 128 N. W. 109; Matter of Westurn, 152 N. Y. 93, 46 N. E. 317.
2. That income subsequently arising from any sucb fund or corpus which is not added to sucb fund and thereby becoming a part thereof and therewith to be subsequently paid over, is not tbe income referred to in sec. 1087 — 1, Stats., and is not subject to inheritance tax. That it was a mistaken view to bold, as was done in Field v. Milwaukee, 161 Wis. 393, 154 N. W. 698, and State ex rel. Kempsmith v. Widule, 161 Wis. 389, 154 N. W. 695, that an income sucb as was being paid to Mrs. Eield in tbis case was subject to an inheritance tax, because Mrs. Eield at tbe time of tbe testator’s *124death did not take an interest in anything then tangible or in existence.
3. That the future or contingent estates referred to in sec.'1081 — 9 and sub. 5, sec. 1081 — 15, Stats., refer to estates such as the remaindermen in this case had in the entire fund which was set aside to create an income for Mrs. Field, and that the inheritance tax upon that fund as an entirety should have been determined and ascertained as against the remaindermen who were ultimately to receive it in its full amount as it existed at the time of the death of the testator. There is no warrant in the statute for determining, for the purpose of the inheritance tax, any interest that Mrs. Field might have had by reason of the provision that she is to receive the subsequent income from such fund.
4. That the income Mrs. Field received became subject to an income tax the first and each succeeding year; but that such income could be properly taxed but once annually either as against her or against the trustee collecting or holding the same.
5. It appearing, however, that as a matter of fact she was assessed on the theory that she must pay for the present worth of what would be subsequently paid to her by way of an income of $5,Q00 year by year during her life, she thereupon was required by the state to pay and did pay a tax computed upon that present worth and therefore she did in effect pay in one lump sum her future income tax.
6. Having once paid the same, the state cannot thereafter, either from her or from any one collecting or holding the same for her, again demand in the name of an income tax that which has already been collected from her, and for that reason the judgment should have been affirmed.